Article 368 and Basic Structure
Like any written constitution, India's foundational document includes provisions for amendment, enabling it to evolve with shifting societal needs and circumstances. Unlike Britain's unwritten constitution, which allows straightforward parliamentary changes, or the United States' rigid framework requiring supermajorities and state ratifications, India's process strikes a deliberate balance. It is neither overly flexible nor excessively rigid but a harmonious blend of both, ensuring adaptability without undermining core principles.
Article 368, housed in Part XX of the Constitution, grants Parliament the authority to amend the document through its constituent power. This includes adding, modifying, or repealing any provision, provided it follows the specified procedure—typically a special majority in both Houses, with some amendments also needing state ratification. Yet, this power has clear limits: Parliament cannot alter the Constitution's basic structure, a doctrine established by the Supreme Court in the landmark Kesavananda Bharati case (1973). This ruling safeguards the document's essential features, such as democracy, federalism, and judicial review, from erosion.
Procedure for Amending the Constitution
The Indian Constitution empowers Parliament to amend its provisions through a rigorous yet streamlined process outlined in Article 368. This procedure ensures that changes reflect broad consensus while safeguarding the document's core structure. Amendments can only be initiated by introducing a dedicated bill in either House of Parliament—never in state legislatures. Notably, the bill requires no prior presidential approval and may be tabled by a minister or any private member.
For the bill to advance, each House must pass it independently with a special majority: not just a simple majority of those present and voting, but also more than half of the House's total membership. Unlike ordinary legislation, disagreements between the Lok Sabha and Rajya Sabha cannot be resolved through a joint sitting, underscoring the deliberate nature of constitutional change. If the bill touches on federal features—such as the division of powers between the Union and states—it further requires ratification by the legislatures of at least half the states, each approving it by a simple majority of members present and voting.
Once cleared by both Houses and, where applicable, the states, the bill goes to the President, who must grant assent without delay or reservation; it cannot be withheld or sent back for reconsideration. Upon receiving this assent, the bill transforms into a Constitutional Amendment Act, seamlessly incorporating the approved changes into the Constitution. This methodical framework has enabled over a hundred amendments since 1950, adapting the world's longest written constitution to India's evolving needs.
Methods of Constitutional Amendment
The Indian Constitution's amendment process, outlined primarily in Article 368, recognizes two principal methods: one requiring a special majority in Parliament, and the other demanding that special majority plus ratification by at least half of the state legislatures through simple majorities. This framework ensures that fundamental changes balance national consensus with federal sensitivities.
However, certain provisions can be altered through a simpler route—a mere majority of members present and voting in each House of Parliament, akin to passing ordinary legislation. These changes, authorized by specific articles outside Article 368, do not qualify as formal constitutional amendments under that provision.
In essence, this leads to three distinct pathways for amending the Constitution: by a simple majority in Parliament alone; by a special majority in Parliament; or by a special majority in Parliament coupled with ratification from half the state legislatures. This tiered structure reflects the framers' intent to safeguard the document's core while allowing flexibility for evolution.
Constitutional Amendments by Simple Majority
Certain constitutional provisions can be amended through a simple majority in both Houses of Parliament, bypassing the more rigorous procedure outlined in Article 368. This streamlined process applies to a specific set of matters, allowing for flexibility in governance without the need for special resolutions or state ratification. These include changes related to the creation, admission, or reconfiguration of states—such as establishing new states, altering the areas, boundaries, or names of existing ones, and even abolishing or creating legislative councils within states.
Parliamentary operations also fall under this category. Amendments can adjust the quorum required for its sittings, the salaries and allowances of its members, the rules of procedure, and the privileges extended to the House, its members, and committees. Additionally, provisions governing the use of English in parliamentary proceedings can be modified similarly.
Judicial and electoral matters are likewise amendable by simple majority. This covers the number of puisne judges in the Supreme Court, the conferment of additional jurisdiction on it, the acquisition and termination of citizenship, elections to Parliament and state legislatures, and the delimitation of constituencies. Relatedly, rules on the use of official languages, the administration of Union territories, and provisions in the Second Schedule concerning emoluments, allowances, and privileges for high officials—like the President, Governors, Speakers, and judges—can be updated in this manner.
Finally, this process extends to tribal administration under the Fifth Schedule (for scheduled areas and tribes) and the Sixth Schedule (for tribal areas), ensuring adaptive governance for these regions without invoking the full amending machinery.
Special Majority for Constitutional Amendments
Most provisions of the Indian Constitution require amendment through a special majority in Parliament—a threshold that demands a majority of the total membership of each House, along with a two-thirds majority of the members present and voting. Here, "total membership" refers to the full strength of the House, unaffected by vacancies or absences, ensuring a robust consensus even amid disruptions.
Procedurally, this special majority is mandated strictly only at the bill's third reading stage. However, to err on the side of caution, the rules of both Houses extend this requirement to all key stages of the legislative process, safeguarding the amendment's gravity.
This mechanism applies to a wide array of constitutional elements, including the Fundamental Rights, the Directive Principles of State Policy, and virtually all other provisions not falling under the simpler "simple majority" route or those needing additional ratification by at least half the state legislatures.
Amendments Requiring State Ratification
Certain provisions of the Indian Constitution that underpin the federal structure of the polity require amendment through a special majority in Parliament, followed by ratification by the legislatures of at least half of the states. This special majority entails the support of more than half of the total membership of each House of Parliament and a two-thirds majority of the members present and voting. Once the amending bill clears Parliament, it must secure the approval of at least half the state legislatures by a simple majority—no prescribed time limit applies, and the silence or inaction of the remaining states does not impede the process. The amendment takes effect as soon as the requisite number of states provide their consent.
This rigorous procedure safeguards key federal features and applies to the following provisions: the election of the President (including its manner); the extent of executive power vested in the Union and the states; the structure, powers, and functioning of the Supreme Court and high courts; the distribution of legislative powers between the Union and the states; the composition and powers of the Goods and Services Tax Council; any of the three lists in the Seventh Schedule; representation of states in Parliament; and even the power of Parliament to amend the Constitution along with the procedure outlined in Article 368 itself.
Criticism of the Amendment Procedure
Critics of India's constitutional amendment process, outlined in Article 368, argue that it falls short in several key respects, concentrating too much power in Parliament while sidelining states and lacking procedural safeguards. Foremost among these concerns is the absence of a dedicated body, such as a constitutional convention or a fresh constituent assembly like those in the United States, to handle amendments. Instead, the authority rests squarely with Parliament, and only in rare instances with state legislatures.
A related grievance is Parliament's exclusive right to initiate amendments. Unlike in the US, where states can propose changes, Indian state legislatures are largely sidelined; their only avenue is passing a resolution urging Parliament to create or abolish state legislative councils—a request Parliament can approve, reject, or simply ignore. Furthermore, much of the Constitution can be altered by Parliament alone, either through a special majority or even a simple one, without state involvement. Ratification, when required, needs approval from just half the states, far short of the three-fourths threshold in the US.
Adding to these issues, the Constitution sets no deadline for states to ratify or reject proposed amendments, nor does it address whether a state can later withdraw its assent. Procedural rigidity compounds the problem: unlike ordinary bills, which trigger a joint sitting of Parliament's houses in case of deadlock, constitutional amendment bills offer no such mechanism. The amendment process itself mirrors ordinary legislation—barring the special majority requirement—leaving it vulnerable to the same parliamentary dynamics. Critics also decry the brevity of these provisions, which they say invites judicial intervention by creating ambiguities.
Yet, these flaws have not undermined the process's effectiveness. Over decades, it has proven straightforward and adaptable, evolving to meet India's changing needs without descending into undue flexibility that might let ruling parties rewrite the Constitution at will, or excessive rigidity that could stifle growth. As political scientist K.C. Wheare aptly noted, it "strikes a good balance between flexibility and rigidity." This view echoes the framers' intentions. In the Constituent Assembly, Jawaharlal Nehru emphasized that while the Constitution should be "as solid and permanent as we can make it," true permanence is illusory: "There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people."
Dr. B.R. Ambedkar reinforced this pragmatism, pointing out that the Assembly avoided the pitfalls of other systems—such as Canada's bar on amendments or the onerous conditions in the US and Australia—opting instead for a "facile procedure." Wheare praised the "variety in the amending process," calling it "wise but rarely found," while historian Granville Austin hailed it as "one of the most ably conceived aspects of the Constitution," diverse yet not overly complicated. In essence, the procedure's merits have outweighed its imperfections, sustaining a dynamic yet stable framework for India's republic.